Request By:
W. John Bourne
Tommy Atteberry, Jr.
Bonita Hendren
Charles Williams
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
This matter having been presented to the Attorney General in an open meetings appeal, and the Attorney General being sufficiently advised, we find that the Bonnieville City Council violated KRS 61.846(1) in failing to respond in writing, and within three business days, to John Bourne's April 8, 2008, complaint, and KRS 61.815(1)(a) through (d) in failing to observe the statutory requirements for conducting a closed session in the course of its April 7, 2008, regular meeting. We find that 07-OMD-264 1 and 08-OMD-042, 2 copies of which are attached hereto and incorporated by reference, are dispositive of the issues on appeal as those decisions relate to the Council's noncompliance with KRS 61.846(1) and KRS 61.815(1)(a) through (d).
In correspondence directed to this office following commencement of Mr. Bourne's appeal, the Council defended its actions asserting that because the April 7 closed session involved "pending litigation," KRS 61.815(2) relieved it of its duty to observe the requirements for conducting the closed session. In response to Mr. Bourne's allegation that the Council failed to respond to his request, the Council advised that "the City of Bonnieville does not have a full-time clerk, and when she is in the office, she works primarily on the Bonnieville water company business." On April 23, 2008, the Bonnieville City Clerk issued what appears to be a boilerplate "response" 3 to Mr. Bourne's April 8 complaint, addressed to "Dear Sir and Madam," in which she stated:
As a part-time employee and the City's only employee, I do not have time or resources to formulate a full response to your request. For that reason, I will note it on the agenda of the May meeting and within 10 days of the meeting you will receive a response to your request.
It was the Council's position that "Mr. Bourne's stream of letters, Open Meetings Appeals, Open Records Requests, and his pointless and vexatious lawsuit . . . are part and parcel of a common scheme or plan to harass, annoy, and intimidate Bonnieville City officials and to drain the City of its meager financial resources."
With reference to the latter argument, this office cannot adjudicate a claim of undue burden or intent to disrupt essential agency functions in the context of an open meetings complaint. The Open Records Act contains a provision that affords relief to public agencies, in such circumstances, at KRS 61.872(6). That statute provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
No analogous provision exists in the Open Meetings Act. Since this appeal rises under KRS 61.846(2), and not KRS 61.880(2), the Attorney General cannot adjudicate the Bonnieville City Council's claim relative to Mr. Bourne's conduct.
With reference to the Council's claim that KRS 61.815(2) relieved it of its obligation to comply with the requirements for going into closed session codified at KRS 61.815(1), we find that 01-OMD-181, and, in particular, the analysis found at pages 9 through 14 of that decision is controlling. A copy of that decision is attached hereto and incorporated by reference. See also, 03-OMD-178 and 05-OMD-148. There, we relied on open meetings opinions dating back to 1980 in holding:
[T]he legislative intent [underlying KRS 61.815(2)] is that agencies, per se, which are exempt from complying with the Open Meeting Law, such as the Parole Board, juries, the Governor's cabinet, committees of the General Assembly and other agencies exempted by statute or by the Constitution do not have to go through the formalities set forth in KRS 61.815, and that agencies which are not exempt per se but which go into closed session to deal with an excepted subject matter must observe those formalities.
01-OMD-181, p. 10, 11, citing OAG 80-248, p. 2; accord,
Floyd County Board of Education v. Ratliff, 955 S.W.2d 921 (Ky. 1997). While we acknowledge that KRS 61.815(2) lends itself to conflicting interpretations, we are not prepared to depart from twenty-eight years of interpretation of the law absent judicial repudiation of our position. 05-OMD-148, p. 13. The Bonnieville City Council is not exempt, per se, from complying with the Open Meetings Act, and we therefore conclude that it is required to comply with the requirements for conducting a closed session codified at KRS 61.815(1). Its failure to do so at its April 7 regular meeting therefore constituted a violation of the Open Meetings Act.
We find the Council's claim that its failure to respond to Mr. Bourne's open meetings complaint was attributable to the city clerk's part-time status legally indefensible. KRS 61.846(1) requires the complainant to submit his Open Meetings complaint to the agency's presiding officer. Mr. Bourne submitted his complaint to Bonnieville Mayor Tommy Atteberry. KRS 61.846(1) also mandates that the agency's "response shall be issued by the presiding officer, or under his authority . . . ." The city clerk has no role to play in the issuance of an agency response to an open meetings complaint. Compare, KRS 83A.085(3)(b) (declaring that "[t]he duties and responsibilities of the clerk shall include but not limited to . . . [p]erformance of the duties required of the 'official custodian' or 'custodian' in accordance with KRS 61.870 to 61.882"). The Council's written response should have been issued by Mayor Atteberry three business days after its receipt. Its failure to issue that response therefore constituted a violation of the Open Meetings Act.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
Footnotes
Footnotes
1 In re: W. John Bourne/City of Bonnieville.
2 In re: W. John Bourne/City of Bonnieville.
3 Mr. Bourne provided this office with a copy of the clerk's response.